Georgia Clemency

Scalia, SCOTUS & Troy Davis’ Last Gasp

Late yesterday afternoon, the Supreme Court of the United States stayed the execution, set for Tuesday night, of Cleve Foster in Texas. The words of the order were simple:

11-6427 FOSTER, CLEVE V. TEXAS
(11A302)
The application for stay of execution of sentence of death presented to Justice Scalia and by him referred to the Court is granted pending the disposition of the petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the issuance of the mandate of this Court.

But there is way more than meets the eye here, because this is not Foster’s first time to the Supreme Court stay rodeo. From a CBS News report earlier in the day before the stay was issued:

Cleve Foster, a Texas inmate sentenced to die for the rape-slaying of a Fort Worth woman nearly a decade ago, is scheduled to be executed tonight – he has been spared from the death chamber twice this year amid appeals.
Foster, 47, is set to die Tuesday evening for fatally shooting 30-year-old Nyaneur Pal, whose body was found in a ditch by pipeline workers on Valentine’s Day 2002. Foster’s execution would be the 11th this year in Texas.

That is what is unusual here. Foster has been up to the Supremes twice and was bounced back the last time without even reaching the merits. Yet here he is again – with a stay – a stay in which the process was initiated by Antonin Scalia. Now the truth of the matter is Scalia is the designated on call judge, what we in the criminal defense bar colloquially term the “hot judge”, for the 5th Circuit, so it would go through Nino. But, still, it is fascinating to see two death cases in five days stayed out of Texas, the death penalty capital of the world, with Scalia’s name on the order.

Foster won his first pardon in January from the U.S. Supreme Court, which halted his execution again in April when it agreed to reconsider an appeal that raised claims of innocence and poor legal assistance early on in his case.

His execution was rescheduled for Tuesday after the high court turned down that appeal.

I was half convinced the Court might even lift the new Foster stay Tuesday night, but I am on the after hours contact list, and have received no such notice as of the time of the instant posting and it is now into Wednesday morning.

Remember, I said this was the second such instance in the last five days? The other one was Duane Buck late last Thursday, which was also somewhat unexpected, although, perhaps, less so than Foster.

Still, that is two surprising instances of death stays by the Supremes in a very short time. Which brings us back to the most talked about execution case in recent memory, Troy Davis in Georgia. Is it a sign or signal from the Supreme Court to Troy Davis’ attorneys and/or the Georgia Clemency Board? Well, probably not literally, no; it would be pretty hard to make that case.

But, figuratively, maybe Continue reading

Emptywheel Twitterverse
bmaz @cristianafarias I honestly see it as a 2-4 hr deal tops. But give some leeway, and day day and half at the most. Anything over that is nuts
4mreplyretweetfavorite
bmaz @neilkli @yeselson Listen, the entire process is controlled by the DA; you seem to think it is about witnesses. It's not.
8mreplyretweetfavorite
bmaz @neilkli @yeselson No, not when attending prosecutors are vouching for Wilson+ripping apart all negative witnesses+refusing to rec charge.
11mreplyretweetfavorite
bmaz @neilkli @yeselson @conradhackett @seanpaulkelley Intentionally trying to confuse GJ and take apart any element that wasn't pro Wilson.
25mreplyretweetfavorite
bmaz @yeselson @conradhackett @seanpaulkelley Exactly. That is a two day gig with either a 2nd degree or voluntary mans. indictment returned.
26mreplyretweetfavorite
bmaz @neilkli @yeselson @conradhackett @seanpaulkelley there are NEVER 20 witnesses on GJ case like this. 3-4 max inc. 1 investigator + 1 coroner
28mreplyretweetfavorite
bmaz @yeselson @conradhackett @seanpaulkelley That said, real charge is prob. voluntary manslaughter. It was NOT an accident; was intent to shoot
29mreplyretweetfavorite
bmaz @yeselson @conradhackett @seanpaulkelley Anything other than a protected cop and this would have been charged as 2nd degree.
30mreplyretweetfavorite
bmaz @yeselson @conradhackett @seanpaulkelley Actually in any other case, prosecutor overcharges to allow for plea negotiation headroom.
31mreplyretweetfavorite
bmaz @yeselson @conradhackett @seanpaulkelley Add a day. Anything over two days on a single gun, single shooter is bizarre.
32mreplyretweetfavorite
bmaz @conradhackett @seanpaulkelley Even any other single gun, single shooter homicide like this would take about 3hrs or less inc. deliberations
36mreplyretweetfavorite
bmaz @conradhackett @seanpaulkelley Ahem. With due respect, the average grand jury presentation lasts less than an hour. #ComeOnMan
44mreplyretweetfavorite
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